Ducie v. Ford

This was an appeal from a decree of the supreme court of the territory of Montana sustaining a demurrer to a complaint originally filed in the second judicial district of such territory. The complaint set forth, in substance, that the plaintiffs, on September 18, 1878, 'became possessed of and owned' certain premises upon which they had discovered a vein or lode of valuable quartz. That they 'duly located' such lode 'as a mining claim' under the laws of the United States, 'and posted a notice of such location,' and established, by posts and corners, boundaries thereto, designating it as the 'Figi' lode; and further claimed to have possessed and owned said premises up to the 15th of March, 1881, when the defendant was about to procure a patent to himself for the same premises 'under a pretended lacation and claim designated by him as the 'Odin' lode.' The plaintiffs apprised the defendant of their claim, and notified him that they 'would adverse and contest' his application for a patent. Thereupon they 'entered into a mutual and verbal agreement' by which it was understood that in consideration of the plaintiffs' 'promising and agreeing to relinquish and give up the possession of such premises' to the defendant, and to abstain from filing any adverse claim or protest against defendant's application for a patent, and to permit him to proceed and procure a patent, the defendant that he would be tenant in common of the plaintiffs in an undivided half of the premises; that plaintiffs and defendant should purchase the premises jointly, but in defendant's name, defendant acting as 'purchasing agent and as trustee of the plaintiffs;' and that after the issuance of a patent, efe ndant would execute and deliver to plaintiffs a deed of an undivided half of the premises. That, relying on defendant's honesty, the plaintiffs relinquished and delivered up possession to the defendant, withdrew all objections to defendant's claim, and permitted him to procure a patent, and 'from time to time thereafter' paid him their share of the purchase money of the premises. And that a patent was subsequently issued to defendant in pursuance of such agreement, but he refused, and still refuses, to convey their share to the plaintiffs.

The prayer was as follows: First, that defendant be declared to hold the legal title to an undivided half of said premises as trustee for the plaintiffs; second, that he be directed to execute a deed of such undivided half to plaintiffs; third, that he be required to account to them for the rents, issues, and profits accrued from such undivided half. Defendant demurred upon the ground-First, that the complaint set forth a contract within the statute of frauds; that no part performance was averred; and that mere delivery of possession to another does not pass title, and cannot be given in evidence as affecting the transfer of real estate.

Second. That the complaint is ambiguous, uncertain, and unintelligble, in that it does not show how much or at what times plaintiffs were to pay to defendant any money, nor what amount of money they are willing to pay, and they make no tender. The demurrer was sustained, an appeal was taken to the supreme court of the territory, and the judgment of the court below affirmed. Plaintiffs thereupon appealed from such affirmance to this court.

Walter H. Smith, for appellants.

[Argument of Counsel from pages 589-590 intentionally omitted]

M. F. Morris, for appellee.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.